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Held, That although it was proved that defendant was guilty of negligence, nevertheless, since it did not appear that the deceased was not guilty of contributory negligence, the complaint was properly dismissed. 84 N, Y., 56; 78 N. Y., 480.

Johnson v. H. R. RR. Co., 20 N. Y., 65; Weber v. N. Y. C. & H. R. RR. Co., 58 N. Y., 461; Ruggles v. N. Y. C. & H. R. RR. Co., 58 N. Y., 251; Mitchell v. N. Y. C. & H. R. RR. Co., 64 N. Y., 656; Moody v. Osgood, 54 N. Y., 496, and Smedis v. Brooklyn & Rockaway Beach RR. Co., 88 N. Y., 13.

Judgment affirmed.

Opinion by Brady, J.; Daniels, J., concurs; Davis, P. J., dissents on the ground that there was no failure of proof on the part of the plaintiff, inasmuch as the law presumes, in the absence of all proof to the contrary, that every person uses ordinary and reasonable care for the safety of his life and limb, and that it belonged to the jury to determine whether or not plaintiff's intestate had been guilty of contributory negligence.

LIEN. LIVERY.

N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT.

Doctor F. Jackson, respt., v. Anthony H. Kasseall, applt.

Decided, June, 1883.

A notice given in pursuance of the provisions of Chapter 498, Laws of 1872, is not retroactive as against a prior mortgagee.

Appeal from judgment of county court entered on a decision rendered upon trial without a jury.

Replevin to recover possession of a mare, cutter, harness and blankets, owned originally by one Palmer. On Aug. 8, 1878, Palmer executed to one Peck a mortgage on a wagon to secure him for having indorsed a promissory note for $150 for Palmer's accommodation. On February 24, 1879, Peck having paid said note, and also $40 more on Palmer's account, Palmer executed to him a mortgage upon the mare, cutter and harness, to secure the payment to Peck of $190, in three months thereafter, with interest. On the day last mentioned, Palmer, for valuable. consideration, executed to plaintiff a mortgage upon the property in suit, to secure payment of $500, in three months, with interest. Each mortgage was duly filed. At the time of execution of the several mortgages, and for some time prior and subsequent thereto, defendant kept a livery and boarding stable, and by agreement made with Palmer in February, 1878, he boarded the mare, and took care of her and of the other mortgaged property. Palmer used the property as he wished until July 28, 1879. On the day when the second mortgage was executed to Peck, Peck saw Palmer and defendant at the stable, and caused Palmer to pay defendant all he then owed him and afterwards and on the same day defendant executed to Peck the said second mortgage, which fact defendant then well knew. On July 28, 1879, the Peck mort

gages were assigned to plaintiff.
On the same day defendant served
on Palmer a written notice of claim
of lien for keep, care and storage
of said property. On August 1,
1879, plaintiff demanded posses-
sion of the property in suit from
defendant, and the latter refused
to deliver possession until paid
$95.72, claiming lien for that a-
mount as a boarding stable keeper.
After such demand and on the
same day, defendant served on
plaintiff a notice as follows
"Rochester, August 1, 1879. To
Doctor F. Jackson. Take notice,
that the amount of my claim and
charges against you for the care
and keep and board of your brown
mare 'Dollie,' is the sum of 86.93,
and it is my intention to detain
such horse in my possession until
such charges and all
all further
charges for care, keep and board
of said mare are paid. Yours,
&c. A. H. Kasseall." At the
time when Peck received his mort-
gages he knew the property in
question was kept by Palmer at
said stable and defendant's terms.
for the keep, care and storage
thereof, and plaintiff knew the
same as early as May, 1879.

J. S. Garlock, for applt.
D. C. Hyde, for respt.

Held, That at common law a livery stable keeper or agister has no lien without special contract to that effect. 3 Hill, 485, 491, 492. There being no special contract here, the case rests upon the statute, Ch. 498, Laws of 1872, which gives no lien upon anything but the "horse or horses" for the keeping of which the debt accrued.

So the defense fails as to all the property in dispute except the mare.

Defendant had no lien upon the mare, as against plaintiff's mortgages, for that part of his demand which accrued prior to his giving notice of his claim. And he is liable for detention of the mare after she was demanded by plaintiff. The notice had no retroactive effect as against the mortgages. If defendant suffers a hardship it is the result of his delay. 28 N. Y., 252.

Scott v. Delahunt, 65 N. Y., 128, distinguished,

Whether a lien for past charges can be created against an owner is another question, which we do not consider.

Judgment affirmed.

Opinion by Smith, P. J.; Har. din and Barker, JJ., concur.

WILLS.

N. Y. COURT OF APPEALS. Livingston et al., exrs., v. Gordon et al.

Decided Oct. 2, 1883.

Testator by his will bequeathed a certain sum to his executors in trust to invest it and pay the income to the New York Home for the Blind so long as it should maintain and care for one G., and in case it should care for him during the balance of his life, then in trust to pay the principal to said institution, but in case it ceased to exist or maintain an institution for the care of the blind, then in trust to pay the income to any other society that should care for said G. and which he might select, and to pay the principal to such society as should be supporting him at his death. Held, That G. was not entitled to the income of the fund, but

to his support at some incorporated institution.

The will of McC. contained the following provisions: "I give and devise to my executors the sum of thirty-two thousand dollars, in trust, to invest the same and pay the interest thereof semi-annually to the New York Home for the Blind, of 219 West 14th street, so long as that institution shall maintain and care for William Gordon, now an inmate of that institution, and in case he shall be so cared for and maintained during the balance of his life, then in trust to pay the principal sum of said thirty-two thousand dollars to said institution, and in case the said society shall cease to exist or to maintain an institution suitable for the care of the blind during the life of said William Gordon, then in trust to pay the income of said thirty two thousand dollars to any other society that will maintain and care for said William Gordon, and which he may select, and to pay the principal of said thirtytwo thousand dollars to such society as shall at the death of said William Gordon be supporting and maintaining him."

A referee was appointed to take proof of all the facts and circumstances relating to or affecting the right of G. to be allowed his support and maintenance at the institution of said society or elsewhere, and what is a proper amount to be paid to said G., if any, for his reasonable support and maintenance, under said will, to the time of said report and during his life, provided he resided elsewhere.

The referee found that G. might select some other incorporated society; that $750 was a proper amount to be paid annually for his support, and that he should be paid for his past support $2,947.91, being at the rate of $750 per annum. The Special Term made an order confirming the referee's report and directing the payment of $1,050 to him annually hereafter, and allowing him to select a place of residence other than the institution of some incorporated society, and the payment of $500 to his attorney for costs and expenses. The General Term reduced the amount to be paid to $750 per annum, restricted his place of residence to the institution of some incorporated society, and reduced the costs to $10, and directed that $750 be hereafter paid annually for the support of G. This order was appealed from.

Sidney S. Harris, for applt. E. S. Ives and E. C. Boardman, for respts.

Held, That the order of the General Term was correct; that G. was not entitled to the income of the fund, but to his support in some incorporated institution, as fixed in the report of the referee.

Also held, That this was not a case for an extra allowance.

Order of General Term, modifying order of Special Term, affirmed.

Per curiam opinion. All concur.

AUCTIONEERS.

N. Y. COURT OF APPEALS.

Carpenter, applt., v. Le Count, respt.

Decided Oct. 26, 1883.

Plaintiff entered into a written agreement with one A., who held a chattel mortgage on his property, which provided that said property should be sold by defendant, an auctioneer, and fixed his commissions at 5 per cent. This was not signed by defendant, but was carried into effect. Held,

That the agreement having been signed by the owner of the property must be considered as a written agreement between the

Martin J. Keogh, for respt.

Held, That the agreement must be regarded, so far as the defendant is concerned, as a valid contract between him and the plaintiff; that having been signed by the owner of the property and carried into effect it must be considered as a written agreement between the parties with the auctioneer which fixed the amount of the fees to be paid him; that as he was authorized under the agreement to charge five per cent. commission no action can be main

tained against him for a penalty in violation of the provision of § 24, 1 R. S., $ 532.

parties with the auctioneer which fixed the amount of his fees, and that no action could be maintained against him for a penalty for violation of the provisions of 1 R. S., 532, § 24.

In April, 1876, plaintiff owned certain chattels on which he gave a mortgage to one A. due on demand. In June, 1876, he arranged with A. that the mortgage should be considered due without demand and A. was to take possession under the mortgage, and a written agreement was executed between plaintiff and A. to that effect, which provided for the compensation of defendant as auctioneer and fixed his commissions at five per cent. This agreement was not signed by defendant. It not only conferred authority for the sale of the goods upon defendant, but provided for the distribution of the proceeds. It was carried into effect with plaintiff's assent, and was executed with the intention of fixing a larger compensation for the auctioneer than that fixed by statute.

M. M. Silliman, for applt.

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grantees assumed and agreed to pay the mortgage and to which the conveyance was made subject. Ransom & Joyce, for applt. George W. Bowen, for respt. Held, That the grantees became bound, upon acceptance, as covenantors, to pay the mortgage. 54 N. Y., 35; 2 Zab., 311; 27 Alb. L. J., 33; Platt on Cov., 11.

The deed in question purports to be and was accepted as an indenture.

Held, That for the purpose of the remedy it may be regarded as the deed of both parties. An indenture is a deed inter partes, or a mutual deed. Co. Litt., 231a; Sir H. Finch on the Law, 109. Judgment of General Term, affirming judgment of foreclosure and sale and for deficiency, affirmed.

Opinion by Andrews, J.

concur.

BANKS. CASHIER.

N. Y. COURT OF APPEALS.

business was carried on at different places
and was separate and distinct. Held, That
the parties to the drafts were two firms
within the meaning of plaintiff's by-law
requiring that the names of two responsible
parties should be on all discounted paper;
and that the discounting of these drafts was
not a loan of money within the prohibition
of the statute.

Defendant, in violation of a by-law, discounted
his own notes and used the proceeds in
speculating in wheat, for doing which he
was discharged. He then deposited the
amount of his notes and demanded their
return, which was refused, but the money
was retained by plaintiff. Held, That
plaintiff was bound to elect whether it
should require the money to be returned or
the wheat surrendered to it, and that when
it accepted the money it surrendered all
interest in the wheat and was not entitled
to the profits arising on its sale.
Reversing S. C., 14 W. Dig., 290.

This action was brought by plaintiff against defendant, who had been its cashier but had been removed, to recover damages on acAll count of defendant's negligence

The Second National Bank of Oswego, respt., v. Burt, applt.

Decided Oct. 2, 1883.

Plaintiff had no exchange committee as required by its by-laws, and its discount committee held no meetings. Defendant, as cashier, with the knowledge and tacit consent of the president and directors, discounted certain drafts, the parties to which were then of good credit but failed before maturity of the drafts. Held, That defendant

was not liable for the loss as there was no

claim that there was any want of integrity, judgment or skill on his part.

Defendant discounted drafts drawn by P.

& Co. upon W. & Co., two firms whose members were the same persons but whose

and violation of duty, and to compel him to pay over profits alleged to have been made by him by unlawfully using plaintiff's funds. Plaintiff's by-laws provided for

a standing committee, known as the exchange committee, consisting of the president, cashier and one director," who were authorized to discount bills, &c., and were required to report at each meeting of the directors. The cashier was authorized, with the assent of the president, to make "discounts of an ordinary character," which were to be reported to the committee, if not then in session, at its next meeting. No exchange committee as provided for was appointed. The board of directors appointed a discount

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